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Noel v. Cox

Court of Appeals of Arkansas, Division II

February 6, 2019

PAUL NOEL APPELLANT
v.
JIM COX AND LARRY BUSBY, AS REPRESENTATIVES OF MAJESTIC LAKE VILLAGE POA APPELLEES

          APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CV-17-626] HONORABLE LYNN WILLIAMS, JUDGE.

          D. Scott Hickam, for appellant.

          Monson, Rowlett, Moore and Boone, P.A., by: Beverly A. Rowlett and Mark S. Breeding, for appellees.

          PHILLIP T. WHITEAKER, Judge.

         Paul Noel appeals from a Garland County Circuit Court order granting summary judgment in favor of Jim Cox and Larry Busby, as representatives of Majestic Lake Village POA (collectively "POA") on his personal-injury claim. We reverse and remand because there are unresolved questions of fact in this case rendering summary judgment inappropriate.

         I. Facts and Procedural History

         The Majestic Lake Village POA consists of a collection of single-family townhomes and certain common areas owned by all the homeowners via the POA.[1] Noel is not a homeowner within the POA. He resides in a subdivision adjacent to the POA. Noel is friends with Timothy Boettger and Greg Smith, who own two of the townhomes located within the boundaries of the Majestic Lake Village POA. At times, Noel would visit the homes of Boettger and Smith. To visit Boettger and Smith, Noel would access the POA property through a gate that adjoins his subdivision and walk down a common area owned by the POA. This common area contains a boardwalk that runs along the lake. In certain areas along the boardwalk, the POA maintains retaining walls. As part of its maintenance, however, the POA did not include any guard rails, fencing, or other barriers along the retaining walls.

         In July 2016, Noel was injured after falling off a retaining wall in the common area of the POA after visiting with Boettger and Smith. On the night of the accident, Noel walked from his home to Smith's home using the boardwalk in question. The path that Noel traveled also included the retaining wall at issue. Shortly thereafter, Smith and Noel walked over to Boettger's home where they sat on Boettger's back deck and talked. At approximately 10:00 p.m., Noel headed home, walking down the back stairs from the Boettger home to a landing area where the boardwalk is located. In the dark, he fell over the retaining wall onto the boardwalk, sustaining an injury.

         Noel filed suit against the POA, alleging that the POA did not exercise ordinary care because it failed to install a guard or rail on the top of the retaining wall. The trial court ultimately granted summary judgment to the POA, finding that, as a matter of law, Noel's status was that of a licensee, that the POA's only duty was to warn Noel of hidden dangers, and that Noel was admittedly aware that the retaining wall lacked a guard rail.

         Noel appeals the trial court's summary-judgment order, arguing that he was an invitee, not a licensee; that the POA had assumed a duty of ordinary care to fix any dangerous conditions; and that there were genuine issues of material fact as to whether the retaining wall was an open and obvious danger to Noel.

         II. Standard of Review

         Our standard of review in summary-judgment cases is well settled. Our court need only decide if the grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. Moses v. Bridgeman, 355 Ark. 460, 139 S.W.3d 503 (2003). Here, the POA was the moving party and bore the burden of sustaining a motion for summary judgment. Id. We must view all proof in the light most favorable to the resisting party-Noel-and any doubts and inferences must be resolved against the moving party-the POA. Id. The POA, as the moving party, is entitled to summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. Summary judgment should not be granted when reasonable minds could differ as to the conclusions that can be drawn from the facts presented. Id.

         III. Analysis

         Noel's claim is one of negligence. In order to prevail on a claim of negligence, the plaintiff must prove that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the breach was the proximate cause of the ...


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